A trustee is not subject to, and does not have to comply with the requirements of, the Fair Debt Collection Practices Act because processing a non-judicial foreclosure is not a debt collection activity under the Act.
Where a deed of trust incorporates by reference the servicing requirements of HUD, including a face-to-face interview, the lender had to comply with the servicing terms prior to conducting a valid nonjudicial foreclosure.
A tender of the amount owed was not required in this case because a) the tender rule applies only in cases seeking to set aside a completed sale, rather than an action seeking to prevent a sale in the first place, and b) the lender allegedly violated laws related to avoiding the necessity for a foreclosure.
Plaintiff's default does not bar their claim that the lender cannot proceed with the foreclosure prior to complying with the HUD servicing requirements.
Borrowers may seek to enjoin a lender from proceeding with a foreclosure based on the lender's failure to perform a HUD servicing requirement, but a private right of action for damages does not exist.
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